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You’d think from all the hoopla over Napster that the fate of copyright law on the planet hinges on how the 9th U.S. Circuit Court of Appeals rules in the case. Well, yes and no. On the one hand, Napster’s battle with the recording industry is a case of first impression, and the 9th Circuit’s ruling could determine the extent to which current copyright law applies to the Internet. On the other, the suit is likely to be just one of several legislative and courtroom battles attempting to mold copyright law around digital technology. Whatever happens, however, court-watchers are likely to be in for a good show as the 9th Circuit hears oral arguments today on a preliminary injunction against Napster issued in July. Not only has the case generated intense media interest, but legal scholars, computer and electronics organizations, civil liberties groups and the federal government have weighed in with amicus briefs. “The whole infrastructure of copyright rights that undergird the music, film and television industries could be undermined,” said Peter Menell, director of Boalt Hall’s Center for Law and Technology. “At the same time, peer-to-peer technology promises great opportunities for artists and others.” A central question for the 9th Circuit is whether U.S. District Chief Judge Marilyn Hall Patel went too far in issuing an injunction against Napster, which would have effectively shut down the company’s music-swapping service. A panel of 9th Circuit judges granted an emergency stay of the injunction two days after Patel’s ruling. They said Napster “raised substantial questions of first impression going to both the merits and the form of the injunction.” But even if the court decides that Patel over-reached in her injunction by failing to specify if it applied only to registered copyrighted works, it could agree with Patel that Napster is likely to be found liable for contributory and vicarious copyright infringement. FLEA MARKETS AND BETAMAX The Napster phenomenon began last year when the San Mateo, Calif.-based company launched its Web site. Internet users can download free software from the site that enables them to access the company’s computer network of servers. Napster’s so-called peer-to-peer file-sharing technology enables everyone on Napster’s site at the same time to swap MP3 music files off one another’s computer hard drives. Last December, the Recording Industry Association of America and several record labels sued Napster, claiming the company engaged in contributory and vicarious copyright infringement. The case, A&M Records Inc. v. Napster Inc., 99-5183, is being considered in tandem with a similar suit filed by a group of music composers, Leiber v. Napster, 00-0074. The recording industry and music composers contend that Napster is simply trying to circumvent copyright law. “In many respects the case is not all that novel,” said Jeffrey Knowles, a partner at Coblentz, Patch, Duffy & Bass, who is one of the attorneys representing music publishers. “The ordinary principles of copyright law apply regardless of whether material is being transferred by mail or on the Internet.” In presenting its case, the recording industry cites a 1996 decision by 9th Circuit Judge Mary Schroeder, one of three judges hearing arguments on Napster. In Fonovisa Inc. v. Cherry Auction Inc., 76 F3d 259, Schroeder ruled that flea market operators were liable for contributory infringement for the sale of counterfeit music recordings by independent vendors. The recording industry says Napster is essentially an Internet swap meet. Patel said in her ruling that she largely agrees with this characterization. “The swap meet provided support services like parking, booth space, advertising and clientele,” Patel wrote. “Here Napster Inc. supplies the proprietary software, search engine, servers and means of establishing a connection between users’ computers.” Morrison & Foerster associate Fred Von Lohmann said the Fonovisa case is very important. “It’s one of the reasons we have the DMCA [Digital Millennium Copyright Act of 1998] safe harbor today,” he said. However, he disagrees with the analogy between Napster’s service and a flea market. “Napster is less like a swap meet and more like a classified ad or dating service,” Von Lohmann said. Napster continues to hinge its defense on the Supreme Court’s 1984 ruling in the Sony Betamax case and the applicability of two copyright laws — the Audio Home Recording Act of 1992 and the DMCA — to its service. In the Betamax case, Sony Corp. of America v. Universal City Studios Inc., 464 US 417, the Supreme Court found that Sony’s sale of videocassette recorders did not constitute infringement since the devices were a “staple article of commerce” that is “capable of commercially significant noninfringing uses.” Napster argues that its service is also capable of such non-infringing uses. Napster also claims that the Audio Home Recording Act, which allows the noncommercial copying of digital audio and analog music recordings by consumers, extends to computers and hard drives. The company says that under this law, consumers exchanging music files are not directly infringing, and therefore Napster itself is not liable for contributory infringement. Finally, Napster claims that as an “information location tool” it is exempt from liability under safe harbor provisions in the Digital Millennium Copyright Act. Numerous organizations have jumped into the debate with amicus briefs to the 9th Circuit. Perhaps most notable is a brief submitted jointly by the U.S. Justice Department, U.S. Copyright Office, and U.S. Patent and Trademark Office. Addressing Napster’s claims to protection under the Audio Home Recording Act, they say Napster users are not using any device or medium specified in the law and that they are not only copying recordings but distributing them to the public. In another brief, a group of 18 law professors led by Jessica Litman of Detroit’s Wayne State University Law School, refute Patel’s interpretation of the Sony Betamax case. “The injunction issued by the district court is so sweeping that it would be impractical for any peer-to-peer file-sharing application to operate under its strictures,” they wrote. The Consumer Electronics Association and several other groups also object to Patel’s analysis of the Sony Betamax case, saying it could discourage development of new digital technologies and products. In yet another brief, the American Civil Liberties Union says Patel’s injunction is overly broad and would have a chilling effect on Internet speech. Three law professors led by Erwin Chemerinsky, of the University of Southern California Law School, opposed the ACLU’s argument in a separate filing. Mark Radcliffe, a partner at Gray Cary Ware & Freidenrich’s Palo Alto, Calif., office, said the big question for the 9th Circuit will be the interpretation of the Sony case. “Is [Napster's service] truly a staple article of commerce?” Radcliffe asked. He said the court will have a hard time finding that Napster fits within the Sony criteria “given the findings of fact made by Patel.” CONGRESS TO PLAY ROLE Adding to uncertainty is the makeup of the 9th Circuit panel hearing the case. None of the three judges hearing the case — Schroeder, Robert Beezer and Richard Paez — has any track record on Internet issues. And only Schroeder, who is to become the circuit’s chief judge in December, appears to have issued a decision that is relevant to the Napster case. Senior Judge Beezer, 72, was appointed to the court in 1984 by President Reagan. In one of his noteworthy rulings, he wrote for the majority of a divided en banc court in 1994 that execution by hanging as administered in Washington state is not cruel and unusual punishment. Paez, 53, was appointed to the court in March. During his tenure on the U.S. district court, he was best known for a 1997 ruling that held an American company liable for human rights abuses committed by the company’s partners in Myanmar, the country formerly known as Burma. And Schroeder, 59, is a President Carter appointee. In addition to the Fonovisa decision, she wrote an opinion in 1987 that the U.S. government’s wartime restrictions of Japanese-Americans were based on racial discrimination, vacating the convictions of those who had violated the restrictions. She also wrote the opinion in a voting rights case, holding that a county had engaged in intentional discrimination in drawing its election districts and had to create a Hispanic-majority district. Whatever the court decides, Congress is likely to step into the fray. Last week, U.S. Rep. Rick Boucher, D-Va., introduced legislation that would allow individual consumers to store their music on an Internet site for access from anywhere they choose. The “Music Owners’ Listening Rights Act” comes in the wake of litigation over MP3.com’s music storage service. And Sen. Orrin Hatch, the Utah Republican and chairman of the Senate Judiciary Committee, recently voiced his interest in the Napster case. Last month, he sent a letter to the 9th Circuit saying the government’s amicus brief did not necessarily express the views of Congress. “Litigation is one piece of a much larger puzzle,” Menell said. “However the 9th Circuit decides the case, it will add fuel to the legislative process.”

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